The Tenth Circuit Court of Appeals recently ruled that teaching students to avoid inflammatory sexual language in academic writing is a legitimate pedagogical goal, and that educators do not run afoul of the First Amendment by exercising editorial control of students’ course-related expression, even control of the viewpoints expressed therein, if such control relates to legitimate pedagogical concerns.
The clash between students’ First Amendment rights to freedom of speech and deference to educators in the academic setting has reached the Supreme Court in such notable controversies as Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967), where the High Court has waxed eloquent on the virtue and necessity of academic freedom in the nation’s institutions of higher education.
More recently, the Tenth Circuit was called upon to decide whether the actions of a professor at the University of New Mexico who objected to ideas expressed in a student’s written assignment violated the student’s freedom of expression. The complicating feature in the court’s consideration was the professor’s description of the course in her syllabus as having “controversy built right into the syllabus,” and “perhaps even incendiary class discussions.” Yet when the student expressed her negative viewpoint on lesbianism, the professor refused to read beyond the first two pages of the student’s critique, and, at a subsequent meeting with the student criticized her paper as “hate speech” and encouraged her to drop the class.
The student, Monica Pompeo, withdrew from the course and brought suit in federal district court in New Mexico, alleging violation of her First Amendment rights by the professor’s exercise of viewpoint-based discrimination. Pompeo sued the Board of Regents of the University and both the professor and the Department Chair in their individual capacities. The district court characterized the dispute as a case of the “all-views-are-welcome” description of the course as contrasted with the “only-those-views-with-which-I-personally-agree-are-acceptable,” and ruled that the student’s critique could not have strayed outside the parameters of the course as described in the syllabus. The district court concluded that the professor ostracized Pompeo because of the professor’s own personal views and not for a defensible pedagogical reason, thereby violating the student’s First Amendment right to freedom of expression. The court denied the university’s motion to dismiss, but later the same court reversed course, dismissing the case with a directed verdict in favor of the university.
Explaining why she reversed her initial decision, District Court Judge Christina Armijo clarified that when she made her ruling in favor of Pompeo, she had not had the opportunity to read Pompeo’s paper. Further investigation revealed that instead of having Pompeo withdraw from the course, the university provided a chance for her to complete the class by independent study with the Chair of the Department, and to complete the assignment on an alternate topic. Pompeo indicated to the Chair that she would rewrite the problematic paper on the topic of lesbianism, but that she refused to be told what words she should use or not use. Pompeo never did rewrite her paper on lesbianism, nor did she submit any other papers. She withdrew from the course. Pompeo appealed the new district court ruling in favor of the university.
At the Tenth Circuit Court of Appeals, the appellate court reviewed the district court’s summary judgment de novo, analyzing the evidence to determine whether the professor and Department Chair were entitled to qualified immunity. Qualified immunity is available when the applicable law is uncertain in the jurisdiction, or where the unlawfulness of the conduct is apparent.
The appellate court initially cited to two seminal student speech cases applied in K-12 student speech controversies in public schools, Tinker v. Des Moines Independent Community School District (1969) and Hazelwood School District v. Kuhlmeier (1988), establishing that: (1) students have a Constitutional right to freedom of speech in the school setting, but that right is not coextensive with that of adults in other settings, and (2) educators do not violate the First Amendment by exercising editorial control over the style and content of students’ papers when such control is reasonably related to legitimate pedagogical concerns. The court noted that the Tenth Circuit had held previously that Hazelwood applied equally well in higher education, and even more stringently as students matured.
The sole remaining consideration for the court was to decide if legitimate pedagogical intent was a pretext for unlawful viewpoint-based discrimination. The court quoted a third Supreme Court decision in the context of K-12 student speech, Bethel School District No. 403 v. Fraser (1986), stating that “the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent , or offensive speech.” The court affirmed the grant of qualified immunity to the professor and her Department Chair. (Note: The Honorable Neil Gorsuch considered this appeal when it originated, but did not participate in the opinion.)
In public institutions of higher education, a pedagogically defensible syllabus is critical for student understanding of the curricular goals and objectives of the course, but also for legal protection of the professor involved in the course and protection of the institution itself.
If you have any questions on this topic, please consult your legal counsel, or one of the Education Law Practice Group attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.